This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-1997

In the Matter of:

James David Fries.

Filed June 17, 1997

Affirmed

Holtan, Judge

[*]

Sherburne County District Court

File No. P695611

John C. Hoffman, Terpstra, Black, Brandell & Hoffman, 913 Main Street, Elk River, MN 55330 (for appellant Fries)

Hubert H. Humphrey, III, Attorney General, Paul M. Landskroener, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for respondent)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Holtan, Judge.

U N P U B L I S H E D O P I N I O N

HOLTAN, Judge

Shortly before appellant was to be released from prison, a petition was filed to commit him as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP). Following a preliminary hearing, the court ordered him held after his scheduled release date pending the commitment hearing. After a hearing on the merits, the court committed appellant as an SDP and SPP. A review hearing was held, and the commitments were made indeterminate.

Fries appealed. The appeal was stayed pending disposition of cases pending before the supreme court addressing the constitutionality and merits of an SDP commitment. After release of the opinions, the stay was dissolved.

FACTS

At the initial commitment hearing, five women testified as to the forcible, unwanted sexual assaults appellant had attempted or committed; four occurred when the women were adults, the fifth when the victim was between ages 11 and 13. One of the assaults occurred while appellant was in an adolescent treatment unit at Willmar Regional Treatment Center. He was convicted of criminal sexual conduct in the second degree. While serving his sentence for this crime, he committed an assault on his special education teacher. He pleaded guilty to fourth-degree criminal sexual conduct.

Extensive testimony was received as to appellant's psychological condition. When appellant was six, he contracted encephalitis and was in a coma for seven weeks, causing long-term physical and emotional problems. Dr. Harry Hoberman, a psychologist, diagnosed appellant with paraphilia not otherwise specified, psychotic disorder not otherwise specified, and antisocial personality disorder. Dr. James Gilbertson, a psychologist, diagnosed appellant with personality disorder secondary to a medical condition. He noted appellant had been diagnosed with many disorders over the years, all of which attempted to capture the cluster of symptoms appellant displayed. Dr. Sharon Satterfield, a psychiatrist, diagnosed him with pervasive personality disorder based on his history of encephalitis, polysubstance abuse, paraphilia not otherwise specified, and antisocial personality disorder.

Dr. Hoberman predicted appellant was likely to reoffend. Dr. Gilbertson testified the likelihood appellant would reoffend was high, and Dr. Satterfield believed there was a 100% chance appellant would reoffend. The experts also discussed the harmful emotional effects of the assaults, and the victims testified as to the emotional harm they had suffered as a result of the attacks, and several discussed physical harm. Dr. Gilbertson and Dr. Satterfield recommended placement at a sex offender treatment center. Appellant was committed as an SDP and SPP.

At the review hearing, further testimony was received as to appellant's condition, diagnosis, and likelihood of future harm. While the experts disagreed as to the extent to which the encephalitis had caused appellant's current condition, they agreed treatment would be beneficial. Testimony was also received that appellant continued to engage in sexually inappropriate conduct.

The trial court committed appellant to the Minnesota Sexual Psychopathic Personality Treatment Center for an indeterminate period as an SDP and SPP. Fries appeals.

D E C I S I O N

I.

Appellant first challenges the fact that the petition for his commitment as an SDP and SPP did not contain a medical examiner's report or a prepetition screening report. A petition for commitment as an SDP or SPP does not require a prepetition screening report, although the county attorney may request one, or an examiner's statement. Minn. Stat. § 253B.185, subd. 1 (1996) (no such requirement found); cf. Minn. Stat. § 253B.07, subd. 1 (1996) (requirement of prepetition screening report for other commitments); Minn. Stat. § 253B.07, subd. 2 (1996) (same for examiner's statement). The petition must be submitted to the county attorney, who shall prepare the petition if satisfied good cause to do so exists and it must be executed by a person with knowledge of the facts. Minn. Stat. § 253B.185, subd. 1.

Appellant claims that he received insufficient notice as to the psychological basis for the commitment, due to the lack of an examiner's report or prepetition screening report, although he acknowledges the petition met statutory requirements. He asserts the insufficient information, along with short amount of notice for the preliminary hearing, left him inadequately prepared for the preliminary hearing, after which the court ordered him held pending decision on the merits, and for the hearing on the merits.[1] See Minn. Stat. § 253B.07, subd. 7(b) (1996) (parties must be given at least 24 hours' notice for preliminary hearing). He contends this violated his due process rights.

Determination of whether procedural due process is violated requires a balancing test. In re Conservatorship of Foster, 547 N.W.2d 81, 85 (Minn. 1996). The private interest affected by the government's action--the temporary deprivation of appellant's liberty--is undoubtedly important. Id. We note, however, that while appellant would have been released from prison had the petition not been filed, he still would have been subject to supervised release. Appellant is being treated no differently from anyone else in his situation. Balanced against the private interest is the risk appellant will be erroneously deprived of his liberty and the probable value of additional safeguards. Id.

Appellant received exhibit A to the petition, which provided him with a summary of Department of Corrections records, including his criminal sexual history, psychological assessments, and treatment history. This appears to be the exact type of information of which appellant claimed he was deprived. As to the minimum 24-hour notice of the preliminary hearing, we note that the entire commitment process is considered on an expedited basis so a petition may be resolved promptly. Minn. Stat. § 253B.07, subd. 7(b) (proposed patient must be given at least 24 hours' notice of preliminary hearing); Minn. Stat. § 253B.08, subd. 1 (1996) (commitment hearing held within 14 days of filing of petition, but may be extended up to additional 30 days for good cause); Minn. Stat. § 253B.23, subd. 7 (1996) (appeal heard within 60 days). In addition, the statute requires the notice of preliminary proceeding to include the alleged grounds for confinement and provides appellant with the right to counsel. Minn. Stat. § 253B.07, subd. 7(b). Further, the issue at this preliminary hearing is whether serious imminent physical harm is likely if the patient is not confined, rather than the merits of the commitment. Id. at subd. 7(d). These statutory requirements protect against erroneous deprivation of liberty, and we do not see a basis for a procedural due process violation under these facts and the law.

II.

Appellant claims further notice problems were present with regard to the written treatment report that must be filed with a committing court within 60 days after the initial commitment. Minn. Stat. § 253B.18, subd. 2 (1996). Appellant argues that his report did not include an individual treatment plan as required by Minn. R. Civ. Commitment 12.05(e). He contends that once it was provided, the report contained other errors; he raises this challenge even though the errors were corrected after being revealed on cross-examination. He also asserts he had only one day to review new documents and one witness was no longer available to testify. These alleged deficiencies do not rise to a procedural due process claim, and there is no showing that the trial court abused its discretion. See Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (evidentiary rulings within discretion of trial court).

III.

Appellant next objects to the fact that the petition for commitment was filed on April 17, 1995, only a few days before his scheduled release date from prison on April 26, 1995. Appellant claims that this violates due process because the state failed to effectuate the commitment when it was first considered five years ago and it failed to provide treatment.

Appellant did not receive treatment in prison for a variety of reasons, including his failure to accept responsibility, disciplinary sanctions for his assault on his special education teacher, a suicide attempt, lack of appropriate custody status, his intellectual status, and the determination that several programs were not appropriate. Further, we find no basis for ruling that the decision to file a commitment petition near the end of appellant's prison term, rather than earlier, was improper. See Minn. Stat. § 253B.185, subd. 2(b) (1996) (providing that if person is committed as SDP or SPP after commitment to Commissioner of Corrections, person shall first serve sentence at facility designated by Commissioner of Corrections). Finally, the county attorney who files the petition has no control over whether appellant is offered treatment in prison.

IV.

Appellant next claims that the trial court erred by admitting exhibit 3, containing corrections records, because certain trial court findings were based on hearsay within these documents or on expert witnesses who relied on hearsay from the documents. A trial court decision regarding admissibility of evidence will not be reversed absent a clear abuse of discretion. Johnson, 518 N.W.2d at 601.

The facts on which an expert bases an opinion, if of a type reasonably relied on by experts in a particular field, need not be admissible in evidence. Minn. R. Evid. 703(a). The underlying expert data must be independently admissible to be received on direct examination, unless received for the limited purpose of showing the basis for the expert's opinion. Id. 703(b). The court indicated it would review the exhibit and give appropriate weight to the information contained in the exhibit that might be hearsay within hearsay. It also cited Minn. R. Evid. 803(24), the catch-all exception to hearsay. Appellant claims this violated his right to confrontation because he could not cross-examine the witnesses who were the source of the hearsay.

We find it unnecessary to address this argument because, as discussed below, other evidence overwhelmingly supports the trial court decision that appellant should be committed, and any error by the trial court on this issue would be harmless. In re Gonzalez, 456 N.W.2d 724, 728 (Minn. App. 1990); Minn. R. Civ. P. 61.

V.

Appellant next claims that he did not cause the type of harm required by the SDP and the SPP statutes.

The SPP statute requires, in relevant part, that the person exhibit

by a habitual course of misconduct in sexual matters, an utter lack of power to control the person's sexual impulses and, as a result, is dangerous to other persons.

Minn. Stat. § 253B.02, subd. 18a (1996). The supreme has held that where there is no pattern of harmful sexual assaults, the dangerousness requirement may nonetheless be met when there is "a substantial likelihood of serious physical or mental harm being inflicted on the victim such as to meet the requirements for commitment as a psychopathic personality." In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994) (finding pedophile who committed unauthorized sexual touchings and spankings did not meet statutory standard).[2]

For commitment as an SDP, there must be a showing that the person has engaged and will engage in "harmful sexual conduct" as defined in Minn. Stat. § 253B.02, subd. 7a. Minn. Stat. § 253B.02, subd. 18b(a) (1996). Subdivision 7a(a) defines harmful sexual conduct as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." There is a rebuttable presumption that conduct described in the statutes prohibiting criminal sexual conduct in the first through fourth degrees creates this likelihood. Id., subd. 7a(b).

Appellant characterizes himself as a "clumsy, impulsive individual whose sexual offenses are so unartful they cannot inflict serious physical or emotional harm." He claims that none of the victims testified to emotional harm requiring therapy, none testified to physical harm requiring treatment, and none was penetrated or touched under the clothing.

Appellant has been convicted of criminal sexual conduct in the second and fourth degrees, and has engaged at other times in similar behavior without criminal charges being brought. Under the rebuttable presumption in section 253B.02, subdivision 7a, the conduct described by these criminal statutes creates a substantial likelihood that a victim will suffer serious physical or emotional harm. Further, appellant's victims testified that they suffered physical and/or emotional harm as the result of his assaults. Finally, Drs. Hoberman and Satterfield testified to the emotional harm appellant's assaults caused. The trial court had clear and convincing evidence to support its conclusion appellant has engaged in conduct that caused serious physical or emotional harm in the past and is highly likely to cause similar harm in the future, meeting the standards for commitment as an SDP and SPP.

VI.

Appellant next contends his commitment must be overturned because the state cannot show that he is treatable. Appellant apparently believes that his condition was caused by the encephalitis and contends there is absolutely no evidence that his organic damage can be treated or repaired.

Even when a person refuses all treatment, the person may be committed and the state has the power to continue to try to treat the patient. In re Wolf, 486 N.W.2d 421, 423-24 (Minn. 1992) (commitment as chemically dependent). The state has a compelling interest in the care and treatment of the mentally disordered, as well as protecting the public from sexual assault. In re Linehan, 557 N.W.2d 171, 181 (Minn. 1996), pet. for cert. filed (U.S. May 2, 1997). The supreme court has recognized that those committed as psychopathic personalities receive intensive treatment for their sexual disorders. Call v. Gomez, 535 N.W.2d 312, 318 n.5 (Minn. 1995).

At the initial and final commitment hearing, there was extensive discussion as to the basis for appellant's condition, as well as the appropriate treatment. Most testimony supported the conclusion that while the effects of encephalitis might have contributed to his social and cognitive difficulties, it was not a direct cause of his sexually assaultive behavior. However, even those who believed it may have played a major role in his condition believed he was treatable. The experts testified that appellant clearly met the standards for commitment and that appellant could benefit from treatment offered at the Minnesota Sexual Psychopathic Personality Treatment Center. The trial court was not clearly erroneous in determining appellant can obtain treatment.

VII.

Finally, appellant challenges the constitutionality of the statutes on substantive due process, equal protection, and double jeopardy grounds. The Minnesota Supreme Court has recently rejected substantive due process, equal protection, and double jeopardy arguments. Linehan, 557 N.W.2d at 184, 187, 189 (upholding constitutionality of SDP statute against substantive due process, equal protection, and double jeopardy challenges); In re Blodgett, 510 N.W.2d 910, 916-17 (Minn.) (upholding prior version of SPP statute against substantive due process and equal protection challenges), cert. denied, 513 U.S. 146 (1994); Call, 535 N.W.2d at 319-20 (upholding prior version of SPP statute against double jeopardy claim).

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 Appellant's arguments are primarily directed toward the preliminary hearing.

[ ]2 While Rickmyer arose under the previous version of the statute, judicial decisions are to interpret and apply the amended version of this statute to the same extent as the previous version. 1994 Minn. Laws 1st Spec. Sess. ch. 1, art. I, § 5.